A surrogacy contract is a legally binding agreement between the intended parents and a surrogate mother. The surrogate agrees to carry a pregnancy for the intended parents, who will then become the legal parents of the child or children born as a result. The contract typically covers compensation, medical procedures, legal rights, potential risks and contingencies, responsibilities of all parties, and the establishment of parental rights after birth.
In some states like California, both altruistic and commercial surrogacy contracts are legal and enforceable. However, other states have restrictive laws or outright bans. You can consult with a knowledgeable attorney to understand the current laws surrounding surrogacy legal agreements where you live.
What Is a Surrogate Mother?
A surrogate mother is a woman who agrees to carry a pregnancy for someone else, often due to the intended parents’ inability to conceive or carry a pregnancy to term. This arrangement is typically formalized through a surrogacy contract.
Example
Jennifer and Mark are a married couple living in Illinois. They have been attempting to start a family for several years but have been unsuccessful due to Jennifer’s medical condition, which makes it impossible for her to carry a pregnancy to term.
After exhausting other avenues, they start exploring the option of surrogacy. They learn about the process, legal implications, and emotional considerations through thorough research and consultations with medical and legal professionals. After much discussion, they decide to proceed with gestational surrogacy, where an embryo created from Jennifer’s egg and Mark’s sperm will be implanted into a surrogate mother.
Through a reputable surrogacy agency, they meet Sarah, a woman in her late 20s who lives in the same state. Sarah is a single mother of two healthy children and is in good overall health. She has researched surrogacy extensively and feels a deep desire to help couples like Jennifer and Mark. She wants to become a surrogate mother not only for financial reasons but also because she believes in the importance of family and wants to help others experience the joy of parenthood.
Sarah, Jennifer, and Mark spend some time getting to know each other, and they feel comfortable moving forward. Their respective lawyers draft and review a comprehensive surrogacy contract. The contract clearly outlines the expectations, responsibilities, and rights of each party. It covers every detail, from medical and psychological evaluations to Sarah’s compensation and healthcare, to the legal process for ensuring Jennifer and Mark are recognized as the legal parents of the child immediately upon birth.
Once all parties agree to the terms and the contract is signed, they begin the medical process. An embryo created from Jennifer and Mark’s genetic material is transferred to Sarah’s uterus. The procedure is successful, and Sarah becomes pregnant.
Throughout the pregnancy, Jennifer and Mark maintain a close relationship with Sarah, attending medical appointments and sharing in the experience. After nine months, Sarah gives birth to a healthy baby girl. As agreed and as outlined in the contract, Sarah surrenders the baby to Jennifer and Mark immediately after birth.
What Is In Vitro Fertilization?
In vitro fertilization (IVF) is a medical procedure where an egg is fertilized by sperm outside the body in a laboratory. The fertilized egg (now an embryo) is then transferred to the surrogate’s uterus with the intention of establishing a successful pregnancy.
Are Surrogacy Contracts Valid Everywhere?
The legality and enforceability of surrogacy contracts in the United States varies widely depending on state laws. Here are some examples:
- California: In California, both gestational and traditional surrogacy contracts are legal and fully enforceable. The state has established a favorable legal environment for surrogacy, with established case law like the famous Baby M case.
- Pre-birth orders (which establish the intended parents as the legal parents before the child’s birth) are granted, meaning that the intended parents’ names can go directly onto the original birth certificate.
- New York: Until recently, New York was one of the few states where compensated surrogacy was illegal. However, the law changed in February 2021, and compensated gestational surrogacy is now legal. The Child-Parent Security Act provides a clear legal process for establishing parental rights in a surrogacy arrangement.
- Nebraska: Nebraska’s surrogacy laws are restrictive. The state statute specifically declares surrogacy contracts to be void and unenforceable. Thus, intended parents might face challenges in this state.
- Michigan: In Michigan, compensated surrogacy contracts are prohibited by law, and violations can result in criminal penalties. Uncompensated surrogacy contracts may be recognized, but the legal landscape here is uncertain and can pose challenges for intended parents.
- Texas: In Texas, gestational surrogacy is explicitly permitted by statute, and intended parents can obtain a pre-birth order to establish parental rights. However, traditional (genetic) surrogacy is not recognized, and such contracts might be deemed unenforceable.
If a surrogacy contract is breached, issues could potentially involve custody disputes, financial penalties, or even criminal charges.
Let’s consider a hypothetical scenario to better illustrate the complexity and potential ramifications of a breach of the agreement.
Emma and Liam, a married couple, have been trying to have a child for many years. Unfortunately, due to medical reasons, Emma is unable to carry a pregnancy. They decide to explore the option of gestational surrogacy, where an embryo created from Emma’s egg and Liam’s sperm would be implanted in a surrogate mother, who would then carry the pregnancy to term.
They live in California, a state with favorable surrogacy laws, and with the assistance of a surrogacy agency, they find a potential surrogate, Mia, who also resides in California. A surrogacy contract is drawn up by a competent attorney and reviewed separately by independent lawyers representing Emma, Liam, and Mia.
All parties agree to the terms, which include that Mia will undergo medical procedures related to the pregnancy, will adhere to certain lifestyle and health requirements, and will surrender the child to Emma and Liam immediately after birth. In return, Emma and Liam agree to cover all medical and legal expenses, provide a living allowance to Mia during the pregnancy, and pay her a substantial sum after the successful birth of the child.
The embryo transfer is successful, and Mia becomes pregnant. During the pregnancy, Emma and Liam stay in contact with Mia and are involved in the process, attending medical appointments and ultrasounds. They prepare their home for the arrival of their baby, filled with joy and anticipation.
However, as the pregnancy progresses, Mia develops a deep emotional attachment to the baby she is carrying. Despite knowing that the child is genetically Emma’s and Liam’s, Mia starts to have doubts about giving up the baby after birth.
In the final trimester, Mia communicates her feelings to Emma and Liam and expresses her desire to keep the child. Emma and Liam are shocked and devastated. They remind Mia of the contract she signed, but Mia remains firm in her decision.
This breach of contract prompts immediate legal action. Emma and Liam’s lawyer files a court case to enforce the surrogacy contract. However, the situation becomes highly emotional and complicated, and the case garners media attention, leading to a public debate on the ethics of surrogacy.
The court, recognizing California’s legal support for surrogacy agreements, rules in favor of Emma and Liam. They reference the clear pre-birth order that was issued, which affirmed Emma and Liam as the legal parents of the baby. The court orders that upon the baby’s birth, custody should go to Emma and Liam, in line with the contract.
In addition, the court addresses the financial aspects of the breach. The judge rules that because Mia violated the contract, she is not entitled to the final sum that would have been paid after the successful birth of the child. Instead, she is ordered to repay a portion of the living allowance she received, given her failure to adhere to the contract’s terms.
Do I Need a Lawyer?
Yes, it is highly recommended that you seek legal counsel if you’re considering entering into a surrogacy agreement. Laws surrounding surrogacy are complex and vary greatly from state to state.
A contract lawyer who has experience in reproductive or family law can help guide you through the process, ensuring that you understand the legal implications, risks, and responsibilities involved. They can also assist in drafting a surrogacy contract that protects your rights and interests. It is crucial to have legal representation during this complex process.
